(1) A wife to whom her husband left the dowry as a preferred legacy
cannot be charged with a trust, for the reason that she does not obtain any
pecuniary benefit from the will, but is considered merely to receive that to
which she is entitled.

(2) A posthumous child, who has been appointed heir, can be charged with
the execution of a trust.

(3) If the Emperor is appointed heir, he can be charged with the payment
of a legacy and the execution of a trust.

(4) A person who is deaf or dumb, whether he receives a legacy, is
appointed an heir, or succeeds on the ground of intestacy, can legally be
charged with the execution of a trust.

(5) Anyone who leaves a trust can charge the party to whom he leaves it,
as follows: "I request you, Gaius Seius, to be content with the said property";
or, "Or I desire that that property be delivered to you".

(6) We can create a trust in the following words: "I ask, I request, I
desire, I direct, I pray, I wish, I enjoin." The expressions "I desire", and "I
command" create a valid trust. The terms "I leave", and "I recommend", do not
furnish ground for an action of trust.

(7) We can leave our own property, as well as that of others, subject to
the terms of a trust; but our own must be delivered immediately, and that of
others must either be purchased, or its value paid.

(8) If a testator leaves property belonging to someone else, as his own,
in trust, he should not do so if he is aware that it belongs to another, as is
the practice with legacies; for the trust will be of no force or effect.

(9) If the testator survives, and sells the property which he bequeathed
the trust is extinguished.

(10) A trust included in a codicil which is not confirmed by a will is
legally due.

(11) A trust left by a father to a son, no matter in what words it is
expressed, is due according to law; for among persons who are related it is
sufficient for the intention to be stated in any words whatsoever, as is the
case with donations; and therefore a trust is considered to be legally
bequeathed even on the day before the death of the deceased.

(12) If a trust be left, in any manner whatsoever, to take effect at the
time of the emancipation of a son, or when he becomes his own master; he will
be entitled to it when freed from paternal control.

(13) Where children are requested to transfer an estate if they should
die without issue, and one of them dies without leaving children, the estate
will pass to the survivor; nor can the parties, with reference to this make any
agreement which is contrary to the will of the testator.

(14) An heir cannot execute a trust before entering on the estate, or a
legatee before receiving his legacy.

(15) If the heir should sell the property left in trust and knowingly
should purchase it, the beneficiary of the trust can still legally demand to be
placed in possession.

(16) Whenever a trust is left to freedmen, it has been decided that it
can only belong to such as have been manumitted, or who are among the legal
number of those who have obtained their freedom under the terms of the same
will.

(17) An heir can not only be charged with a trust involving the property
of the estate, but also with one relating to his own property.

(18) All the rights attaching to a trust consist not in bringing an
action to recover the property, but in making a demand for it.

TITLE II. CONCERNING THE TREBELLIAN DECREE OF THE
SENATE.

(1) It was provided by the Trebellian Decree of the Senate that the heir
should not be burdened with all the actions which might be brought against the
estate; and therefore, whenever the estate is transferred under the terms of a
trust, the actions relating to it are also transferred to the beneficiary, for
the reason that both parties should not be liable to loss.

TITLE III. CONCERNING THE PEGASIAN DECREE OP THE
SENATE.

(1) A stipulation is entered into between the heir and the beneficiary
of a trust to whom an estate is transferred under the Pegasian Decree of the
Senate, in such a way that a fourth part of the actions will lie in favor of
the appointed heir, and the remainder in favor of the beneficiary of the trust
in proportion to his share of the estate.

(2) If the heir is asked to transfer the entire estate and is unwilling
to retain the fourth, the better opinion is that he should transfer it under
the Trebellian Decree of the Senate; for then all actions are granted to the
beneficiary of the trust.

(3) Again, the Lex Falcidia and the Pegasian Decree of the Senate
as well, permit the fourth of the remainder of the estate to belong to the
heir, after the debts and the gifts to the gods have been deducted.

(4) An heir who transfers the entire estate, and does not retain the
fourth part of it under the Pegasian Decree of the Senate, as he should have
done, cannot recover it; for he who prefers to discharge his entire duty to the
deceased is not considered to have paid something which was not due.

TITLE IV. CONCERNING THE REJECTION OF AN ESTATE.

(1) An estate can not only be refused by words but also by acts, and by
any indication of the intention whatsoever.

(2) An heir can be compelled by municipal magistrates, under the
authority of the governor, to enter upon and transfer an estate, on the demand
of the beneficiary of the trust.

(3) If the beneficiary alleges that the heir refuses to enter on the
estate he can demand that a decree be rendered in his absence, and that he
legally be placed in possession.

(4) An heir who is compelled to enter on an estate which is supposed to
be insolvent, transfers all the property belonging to the same under the
Trebellian Decree of the Senate.1

1 Trusts, or bequests for the benefit of a third party, and
known as fideicommissa, were invented to evade the rule of law by which
a Roman citizen was prohibited from leaving property directly by will to
foreigners and other persons legally incompetent to receive it. At first, no
legal measures could be taken to enforce compliance with the wishes of the
testator, the legacy absolutely vested in the trustee who was the testamentary
heir, and was only in honor bound to carry out the provisions of the will, so
far as the beneficiary of the trust was concerned. Violation of this moral
obligation, however, occurred so often that the Emperor Augustus declared it to
be legally binding, and provided for the enforcement of its performance. It is
related of him that he himself scrupulously observed the directions of a
testator with reference to the transfer to a beneficiary of property bequeathed
for the benefit of the latter; thus affording a laudable example for the
observance of his subjects. The consuls, and subsequently two prętors
especially appointed for that purpose, were invested with jurisdiction over
trusts. As difficulties arose in their execution, owing to the reluctance of
the heir to assume responsibilities that in many cases were productive of no
advantage, and which might result in serious loss, various decrees of the
Senate were enacted to remove these drawbacks. By this means the heir, on the
transfer of the estate, was released from all liability, which was assumed by
the beneficiary; and he was entitled to a fourth of his share which, however,
he forfeited if he refused to enter on the estate and legal measures were
required to compel him to do so.

Trusts were either universal or special; the first involved the transfer
of an entire inheritance, the second had reference to some designated article
or a specified sum of money. An universal trust was, in its effect, merely a
kind of substitution, entirely dependent upon the previous entry of the heir
upon the estate. It was not necessary for the heir to even accept the execution
of the trust in order to transmit it to his successors; and when certain
property, which included his fourth, was bequeathed to him, he was held to
occupy the position of an ordinary legatee. The beneficiary of a trust, as well
as an heir, had the right to reject an estate or a legacy if he thought that it
would prove burdensome, or disadvantageous.

Fideicommissa, which are treated under the head of Substitutions,
are recognized by nearly all the Codes of Continental Europe. They were
introduced into England under the name of "uses", during the reign of Edward
III, for the purpose of evading the Statutes of Mortmain by enabling the clergy
to enjoy the use and benefit of lands which could not be directly devised to
them. The trustee was called the feoffee to uses, and the
fideicommissarius, or beneficiary, the cestuy que use, and
afterwards the cestuy que trust. The Statute 15, Richard II, 2, 5,
effectively disposed of this ingenious expedient to avoid the requirements of
the law. "If any be seized of any lands or other Possessions to the use of any
Spiritual Person with purpose of Amortize them, and whereof such Spiritual
Person takes the Profits, he shall before the Feast of St. Michael next, cause
them to be Amortized by the Licence of the King and other Lords, or dispose of
them to some use; otherwise they shall be Forfeit according to the Form of said
Statute, as Lands purchased by People of Religion; And no such Purchase to the
use of such Spiritual Person shall be hereafter made, upon like pain."
(Wingate, An Exact Abridgment of all the Statutes from the beginning of Magna
Charta, Title Mortmain, Page 433.) — ED.

TITLE V. CONCERNING THE COMPLAINT THAT A WILL IS
INOFFICIOUS.

(1) A will is said to be inofficious, because the children having been
improperly disinherited, it does not appear to have been drawn up in accordance
with the duty of parental affection.

(2) When a son is born after a will has been made by his mother, and her
intention does not seem to have been changed when it could have been done; the
son can properly file a complaint for inofficiousness, as in the case of an
heir who has been passed over.

(3) A will in which the Emperor is appointed heir can be declared
inofficious; for it is but fitting that he who makes the laws should with equal
dignity obey them.

(4) Anyone who can allege a will to be inofficious is not prevented from
claiming the estate.

(5) A son who is appointed heir to an entire estate cannot declare the
will to be inofficious, nor does it make any difference whether the estate is
exhausted or not, for he still will be entitled to the fourth part of the same
by the benefit of either the Lex Falcidia or the Pegasian Decree of the
Senate.

(6) The fourth part of the estate, after the debts and funeral expenses
have been deducted, should be given to the children, in order that they may be
prevented from making a complaint of inofficiousness. It is settled that grants
of freedom also diminish this part.

(7) If a son obtains less than a fourth part of the estate under the
will of his father, he can legally demand that the remainder of his share be
made good by his brothers, his co-heirs, without filing a complaint of
inofficiousness.

(8) An agreement not to declare a will inofficious does not bar a future
complaint with reference to the will, for it has been decided that the claims
of children should be considered rather than any agreement.

(9) Where an heir is requested to transfer the estate, no injury is done
to the beneficiary of the trust, even though the heir might be able to file a
complaint of inofficiousness; for he only loses a fourth part of the estate
which he could have had under the terms of the Decree of the Senate. .

(10) If the appointed heir has a substitute, and makes a complaint of
inofficiousness but fails to gain his case, the property will not belong to the
Treasury, but to the substitute.

TITLE VI. CONCERNING THE TAX OF THE TWENTIETH.

(1) A will is opened in the following manner: either all the witnesses
who attached their seals to the will, or the majority of them are summoned, so
that, having acknowledged their seals, and the cord having been broken, the
will may be opened and read, and the opportunity to make a copy of the same may
be afforded; and then, having been sealed with the public seal, it is placed
among the public records, in order that if the copy should be destroyed, it may
be known where the original can be found.

(2) Wills executed in provincial towns, colonies, fortified places,
prefectures, villages, castles, and places of assembly should be opened and
read in the presence of the witnesses or of respectable citizens in the forum
or the church between the second and the tenth hour of the day. A copy having
been made, the will is again sealed up in the presence of the magistrates in
whose presence it was opened.

(2a) Anyone who opens or reads a will in any other manner, or in any
other place than those required by law, is liable to a penalty of five thousand
sesterces.

(3) The law directs a will to be opened immediately after the death of
the testator; and although this rule has been changed by rescripts, still,
under those at present in force a will should be opened within three to five
days after the death of the testator, and where the parties are absent, within
the same number of days after their return; for this is not a matter of such
importance to the heirs, legatees, or recipients of grants of freedom, as it is
that no delay should take place in the payment of the necessary tax.

TITLE VII. CONCERNING THE LEX CORNELIA.

(1) Anyone who writes, reads, substitutes, or seals a forged will, or
knowingly and maliciously suppresses one which is genuine, or removes it,
re-seals it, or destroys it, is liable to the penalty for forgery under the
Lex Cornelia; that is to say, he shall be deported to an island.

(2) Not only he who substitutes, suppresses, or destroys a will, is
punished by the penalty of the Lex Cornelia, but also he who knowingly
and maliciously orders this to be done, or takes care that it shall be
done.

(3) He suppresses a will who knowingly, intentionally and for the
purpose of defrauding the heir, the legatees, the beneficiaries of a trust, or
the slaves entitled to freedom under the will does not produce it.

(4) He is considered to suppress a will who having it in his possession
and being able to produce it, takes care not to do so.

(5) If a codicil is concealed and not produced, it is considered to be
suppressed.

(6) It is provided by the Perpetual Edict1 that if a will is
not produced proceedings can be instituted within the year to compel its
production through an interdict, by means of which the party who suppressed it
can be forced to produce it. Where the instrument is written either on papyrus
or parchment, it comes under the head of a will.

1 The Prętor was invested with extraordinary power with
reference to subjects included in his jurisdiction. His edict, inscribed upon
the "album" or "tablet" — so called from its white color — posted
conspicuously in the Forum, announced to all the formulas of practice, and the
principles which were to form the bases of his decrees for the ensuing year. It
is true that he usually adopted, with slight modification, those promulgated by
his predecessors, but he was, by no means, obliged to do so. A new order of
proceeding, other rules of judicial conduct, were ever at his disposal, on the
assumption of his magisterial duties; provided, of course, that he could frame
them, that they were not inequitable, and did not interfere with the rights of
the litigants who appeared before him. This vast authority, which, to a certain
extent, practically conferred upon the person in whom it was vested the
privilege of legislation, was naturally liable to abuse; and led to the
enactment of the Edictum Perpetuum, or "Continuous Edict", by whose
provisions the Prętor was deprived of the arbitrary power to issue new
edicts arising from the circumstances of any particular case, and was compelled
to adhere to the rules which he himself had prescribed for his guidance during
his term of office. This regulation, whose observance was originally optional
with the Prętor, became compulsory with the passage of the Lex
Cornelia, 67 B. C.; and effectively disposed of the Edicta Repentina
or Extraordinaria, which has reference only to individual cases, and too
frequently had been inspired by the caprice or prejudice of the occupant of the
Prętorian Tribunal.

In A. D. 131, during the reign of Hadrian, the Prętorian Edict,
the interpretation and enforcement of which had previously been largely left to
the discretion of the magistrate, acquired new legal authority through express
Imperial sanction. Salvius Julianus, one of the most renowned jurists of the
age, was ordered by the Emperor to revise the Edict as it then stood, with a
view to having it enacted as a law. During the process of revision, many
changes appear to have been made, some of them arbitrarily in accordance with
the opinions of the compiler, others at the suggestion of the Emperor himself.
The result of this was that, as strict construction and rigid application of
the terms of the Edict now became obligatory on the Prętor, his equitable
jurisdiction was greatly curtailed, often to the serious embarrassment and
hardship of litigants, who sought relief in his Court from the severe and
inflexible principles prescribed by the Civil Law. — ED.

TITLE VIII. CONCERNING THE SUCCESSION OF PERSONS
DYING INTESTATE.

(1) ....2

(2) ....2

(3) ....2

(4) ....2

(5) ....2

(6) ... 2

(7) ....2

(8) ....2

(9) ....2

(10) ....2

(11)

(12)

(13)

(14) The following difference exists between agnates and cognates,
namely, cognates are included among agnates, but agnates are not included among
cognates; and therefore a paternal uncle is both an agnate and a cognate, but a
maternal uncle is a cognate but not an agnate. (15) (16) (17)

(18) Where one brother is dead, his surviving brother has a living son
and there is a grandson of the deceased brother, the son of the former will be
preferred to the grandson of the latter.

(19)

(20) The son of a brother is preferred to the son of a sister, where the
property of an intestate estate is concerned.

(21) By the ancient Civil Law, if legal heirs merely enter upon an
estate within a hundred days the succession is transferred to the next of
kin.

(22) Women beyond the degree of sisters are not admitted to the
succession of intestate estates; and this is considered to have been
established by the Voconian rule under the Civil Law. The Law of the Twelve
Tables, however, admits agnates without this distinction of sex.

(22a) Although women beyond the degree of sisters are not admitted to
the succession of intestate estates, they are, nevertheless, not prevented from
demanding prętorian possession on the ground of relationship.

(23) The rule of succession does not apply to inheritance by law, and
therefore, if a brother dies before entering on an estate, or rejects it, the
son of his brother cannot be admitted, although if the succession were lost it
would pass to the next of kin.

(24) Anyone who is captured by the enemy and returns under the law of
postliminium, does not lose his right either as a proper heir or an
heir-at-law. It has been decided that the same rule shall apply to those who
have been deported to an island or sentenced to penal servitude, if, through
the indulgence of the Emperor, they are completely restored to the enjoyment of
all their rights.

(25) To act as the heir is to assume the management of some property
belonging to an estate with the intention of afterwards claiming it; and hence
he is considered to act as an heir who arranges for the cultivation of land
belonging to an estate, and who makes use of slaves, animals, and other
property forming part of the same.

(26) Where some of several heirs-at-law have neglected to accept an
estate, or have been prevented from entering on it for some reason or other,
those who did enter on it, or their heirs, will obtain by accrual the shares of
any who failed to do so. The rule which applies to an appointed heir who fails
to accept an estate, namely, that he can have a substitute, is not applicable
in this instance, for a difference exists between a testamentary heir and an
heir-at-law.

2 Original manuscript illegible.

TITLE IX. ON THE TREBELLIAN DECREE OF THE SENATE.

(1) It is sufficient for mothers — and this includes not only those
who are freeborn, but also freedwomen who are Roman citizens — in order to
be entitled to the right of children, to have had children three or four times
provided the latter were born alive and after full term.

(2) A woman who has three children at a birth is not entitled to this
right, for she did not have children three times, but is considered to have had
but one birth, unless she should have had them at intervals.

(3) If a woman brings forth a monster or a prodigy, this is of no avail,
for creatures having forms contrary to that of the human race are not
children.

(4) It has been decided that a mother can take advantage of a child
whose membranes serve a double purpose, for the reason that it seems, to a
certain extent, to be human.

(5) A child born after the seventh month is an advantage to its mother
in this respect, for the rule of the Pythagorean number seems to admit that the
child appears to be mature after the seventh or the tenth month.

(6) An abortion or a miscarriage is not considered to constitute a
birth.

(7) In order that a freedwoman, who is a Latin, may obtain the right
attaching to the birth of a number of children, it is sufficient if she has had
four, as in the case of a woman who is free born.

(8) A Latin woman, who is freeborn, obtains the right of Roman
citizenship if she has had children three times and is admitted as heir-at-law
to her son, for she was not manumitted.

(9) A mother is entitled to the right attaching to the birth of a number
of children who, either has, or has had three sons, even though she may not
have them, nor has had them. She has them when they survive, she has had them
after she has lost them; and she neither has, or has had them, when, through
the kindness of the Emperor, she obtains the right attaching to their
birth.

TITLE X. ON THE ORPHITIAN DECREE OF THE SENATE.

(1) Children born of promiscuous intercourse are not prevented from
claiming the estate of their mother, if she died intestate; because, as their
estates pass to their mother so the estate of their mother should vest in
them.

(2) Through the operation of the Claudian Decree of the Senate, the
estate of a mother who died intestate cannot pass to a daughter who is either a
female slave, or a freedwoman; because neither slaves nor freedmen are
understood to have mothers under the Civil Law.

(3) Children who are Roman citizens, but not Latins, are admitted as
heirs-at-law to the estate of their mother who died intestate; they must,
however, be Roman citizens at the time when the intestate estate passed to
them, and could be entered on; just as when children become certain that their
mother is dead, although they have not been notified, and it is clearly
ascertained that she died intestate.

(4) A son cannot acquire the estate of his mother as heir-at-law without
entering on the same.

TITLE XL CONCERNING DEGREES.

(1) In the first degree of the ascending line are the father and the
mother; in the first degree of the descending line, are the son and the
daughter, and no other persons.

(2) In the second degree of the ascending line are the grandfather and
the grandmother; in the second degree of the descending line are the grandson
and the granddaughter; in the collateral line are the brother and the sister.
These persons are doubled for the grandfather and grandmother on the father's
as well as the mother's side, and the grandson and the granddaughter born of
the son as well as of the daughter, and the brother and the sister on the
father's as well as the mother's side, are included. Moreover, these persons
are also doubled in the same order and in the same manner in the succeeding
degrees, according to their positions in each degree.

(3) In the third ascending degree are the great-grandfather and the
great-grandmother; in the third descending degree the great-grandson and the
great-granddaughter; in the collateral degree the son and the daughter of the
brother and the sister; the paternal uncle and the paternal aunt, that is to
say, the brother and sister of the father, and the maternal uncle and the
maternal aunt, that is to say, the brother and sister of the mother.

(4) In the fourth ascending degree are the great-great-grandfather and
the great-great-grandmother; in the fourth descending degree the
great-great-grandson and the great-great-granddaughter; in the collateral line
the grandson and the granddaughter of the brother and the sister, the son and
the daughter of the father's brother, that is, the son and daughter of the
paternal uncle, the son and daughter of the father's sister, that is the son
and daughter of the paternal aunt and the son and daughter of the maternal
aunt; although this term of relationship is properly applied to children born
of two sisters, to which is added the great paternal uncle and the great
paternal aunt, that is, the brother and sister of the paternal grandfather; and
the great maternal uncle and the great maternal aunt, that is, the brother and
the sister of both the paternal and the maternal grandmother, and of the
maternal grandfather.

(5) In the fifth degree in the ascending line, are included the
great-great-great-grandfather, and the great-great-great-grandmother; in the
descending line, the great-great-great-grandson, and the
great-great-great-granddaughter; in the collateral line the great-grandson and
the great-granddaughter of the brother and sister, the paternal uncle of the
brother, and the paternal uncle of the sister, the maternal uncle of the
brother, and the maternal aunt of the sister, and their children; and then the
cousins of both sexes, that is to say, the sons and daughters of the great
paternal uncle and the great paternal aunt, and of the great maternal uncle and
the great maternal aunt. Next in order of these come the great paternal uncle
and the great paternal aunt, the brother and sister of the paternal
greatgrandfather, and the great maternal uncle and the great maternal aunt, the
brother and sister of the paternal and the maternal greatgrandfather, and the
maternal great-grandparents.

(6) In the sixth degree in the ascending line are the
great-great-great-great-grandfather and the
great-great-great-great-grandmother; in the descending line are the
great-great-great-great-grandson and the great-great-great-great-granddaughter,
in the collateral line the great-great-great-grandson and the
great-great-great-granddaughter of the brother and sister, the paternal uncle
of the brother and sister, the maternal uncle and aunts, and the grandson and
the granddaughter of cousins, the grandson and granddaughter of the paternal
great uncle and the paternal great aunt and of the maternal great uncle and the
maternal great aunt, that is, they are more properly called cousins, as the son
and the daughter of a cousin are also styled cousins. Next in the collateral
line come the son and the daughter of the paternal great-great-uncle, and the
paternal great-great-aunt, and of the maternal great-great-uncle, and the
maternal great-great-aunt, and the brother and sister of the paternal and
maternal great-great-grandfather; and the brother and sister of the paternal
and maternal great-great-grandmother, and the maternal
great-great-grandparents.

(7) Those who are related in the seventh degree are not designated by
peculiar names in either the direct ascending or descending lines; but in the
collateral lines are the great-great-grandsons and the
great-great-granddaughters of the brother and sister and the cousins or
great-great-grandsons and great-great-granddaughters, and their sons and
daughters.

(8) Only seven degrees of succession have been established, because in
the nature of things neither names can be found nor life be prolonged, for
those who succeed.

TITLE XII. CONCERNING MANUMISSIONS.

(1) Where one of his owners manumits a slave held in common he does not
render him a Latin, nor still less a Roman citizen, and the share in the slave
who, if he had belonged to but one person, would have obtained Roman
citizenship, accrues to the other joint owner.

(2) A person who is dumb and deaf cannot liberate a slave under the wand
of the Prętor; but he is not forbidden to manumit him in the presence of
friends, or by means of a letter. Moreover, in order that the slave may obtain
legal freedom, he can be excepted by his owners from the condition of the
sale.

(3) A slave who has been subjected to torture in the presence of the
governor and does not confess any crime, can receive lawful freedom.

(4) Where freedom is granted to a slave under the terms of a trust it is
not annulled by the act of the heir, if he puts in chains the slave whom he was
ordered to manumit.

(5) One of the joint-owners of a slave does not prejudice his future
freedom by placing him in chains, for among similar opinions the more merciful
is preferred to the more severe. It is certainly the part of human reason to
favor the wretched, and to say that those are almost innocent whom we cannot
declare to be absolutely bad.

(6) A creditor, or a debtor cannot, by placing a slave who has been
pledged in chains, put him in the position of an enemy who has surrendered at
discretion; for one of them cannot, without the other, cause deterioration of
the property pledged.

(7) A slave who has been placed in chains by the order of an insane
master or one who is a minor, is not to be classed in the number of persons who
have surrendered at discretion, for the reason that neither an insane person
nor a minor is capable of exercising good judgment.

(8) Not even if the master himself should place him in chains, will he
prejudice his right to freedom; but if he should order this to be done, or
should ratify the act of his attorney or agent who have placed him in chains,
this will not affect the prospect of his future freedom; even if before he knew
that he had been placed in chains, he should approve of his release.

(9) A curator cannot be appointed for a blind man, because he himself
can appoint an attorney.

TITLE XIII. CONCERNING GRANTS OF FREEDOM UNDER A
TRUST.

(1) Where an heir is appointed on the condition that he will emancipate
his children, he is, by all means, required to emancipate them; for in this
instance emancipation is considered to be conditional.

(2) Where the party who has been charged with a grant of freedom under
the terms of a trust dies, his heirs should be required to bestow it.

(3) If a person at the time of his death grants freedom to his slaves,
as follows, namely: "I wish So-and-So and So-and-So to be free, and I appoint
them guardians of my children"; the grant of freedom under the trust will be
prevented, because wards cannot manumit without the authority of their
guardian, and a guardian cannot be appointed for those who already have one. In
the meantime, however, wards are considered as being absent, and under the
Decree of the Senate freedom can first be granted, and guardianship be
established afterwards.

TITLE XIV. ON THE LEX FUFIA CANINIA.

(1) Slaves can be manumitted by will only by name, according to the
Lex Fufia. They are understood to be properly manumitted by name when
the following forms are employed: "Let Stichus be free"; or "I desire my
steward", or "the child of my female slave to be free". By the Orphitian Decree
of the Senate freedom can be granted just as if the slave had been mentioned by
name, for the reference to his occupation and trade makes no change in his
designation, unless there are several slaves who discharge the same duties; for
then the name should be added in order that it may be clear which one the
testator seems to have meant.

(2) Where grants of freedom mentioned in a codicil confirmed by a will
agree with those granted by the will, they are considered the most recent
because both are confirmed by it whether they precede or follow the will in
point of time.

(3) Whenever a number of slaves is referred to on account of the Lex
Fufia Caninia, fugitives also, whose possession is always supposed to be
retained, should be included.

(4) It is provided by the Lex Fufia Caninia that a certain number
of slaves can be manumitted by will; therefore, where two have been stolen,
half of the remainder from three to ten, can be manumitted; from ten to thirty,
the third; from thirty to a hundred, the fourth; from a hundred to five
hundred, the fifth; but it is not lawful for more than a hundred to be
manumitted from the greater number of slaves.